President Barack Obama will give recess appointments to 15 nominees who have been awaiting a confirmation vote in the Senate, the White House announced Saturday. But no Justice Department nominees are among them.
Emboldened perhaps by his victory on health care reform, Obama is making use of his recess appointment power for the first time in the face of what a White House blog post called an “obstruction-at-all-costs mentality” of Senate Republicans.
A total of 217 nominees have been pending before the Senate for an average of 101 days, the White House said. The 15 nominees Obama intends to appoint during the congressional recess have been pending for an average of 214 days, the White House said.
Among the recess appointments will be Jeffrey Goldstein, nominee for Under Secretary for Domestic Finance at the Treasury Department.
But Dawn Johnsen isn’t on the list. The Indiana University law professor’s nomination to head the Justice Department’s Office of Legal Counsel has been awaiting a vote in the Senate for more than a year. Republicans have objected to Johnsen’s prior work for an abortion rights group and her opposition to Bush-era national security legal policies.
In addition, Tax Division nominee Mary Smith and Office of Legal Policy nominee Chris Schroeder were not given recess appointments. Smith took a position in the Civil Division as she awaits confirmation. Schroeder’s nomination first went to the Senate in June 2009.
“The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis,” Obama said in a statement.
“Most of the men and women whose appointments I am announcing today were approved by Senate committees months ago, yet still await a vote of the Senate. I simply cannot allow partisan politics to stand in the way of the basic functioning of government,” Obama said.
A recess appointment lasts until the end of the next congressional session. Recess appointments are done infrequently, because they usurp the Senate’s constitutional role, angering many senators. During his tenure President George W. Bush made a number of recess appointments, spawning objections from Democrats.
Obama threatened in February to make recess appointments but relented after Senate Republicans lifted holds on some nominees, allowing 27 new administration officials to be confirmed.
Other nominees who are slated to receive recess appointments include David Lopez, Obama’s nominee for general counsel of the Equal Opportunity Commission, who previously worked in the Civil Rights Division of the Justice Department; and Eric L. Hirschhorn, a partner in the Washington, D.C., office of Winston & Strawn LLP, who will be appointed to head the Bureau of Industry and Security at the Department of Commerce.
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Mary Smith has been appointed to the Justice Department’s Civil Division pending the outcome of her long-stalled nomination to lead the Tax Division, a Justice official said.
She is expected to begin work on Wednesday as Senior Counsel to Assistant Attorney General Tony West, the official said.
Her nomination has been controversial. Republican senators have complained of Smith’s lack of tax law experience, but Democrats have defended her, saying her past work as an in-house counsel at Tyco International and as a DOJ trial attorney qualifies her for the post.
Smith was a trial attorney in the Civil Division in the 1990s, before leaving to work on President Bill Clinton’s reelection campaign. She later worked in Clinton’s White House counsel’s office. After she left government, Smith was senior litigation counsel for Tyco during a class action against the company that ended in $3 billion settlement.
Most recently, she was a partner at the Chicago law firm Schoeman, Updike & Kaufman.
In the front office, Smith will be advising West on division organization and coordinating with other offices, among other duties, the official said. She was appointed to the Civil Division, rather than the Tax Division, because nominees are barred from handling matters in the office to which they are nominated.
Smith may be in the Civil Division for awhile. Republican Sen. Richard Shelby of Alabama has placed a blanket hold on all nominations pending on the Senate Executive Calendar, over concerns he has about a tanker contract that could bring 1,500 jobs to Mobile, Ala., and over funds he is requesting to build an FBI counterterrorism center in his state.
The Senate panel approved Smith on a party line vote last June, but in the face of Republican opposition, her nomination never reached the Senate floor. The nomination was returned at the end of the session in December. President Barack Obama renominated her this year, and she again moved through committee on a party line vote last Thursday.
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Editor’s note: The following guest commentary was originally posted on HuffingtonPost.com. Main Justice has received permission from the authors to republish it here.
Is Barack Obama now ready to fight partisan confirmation obstruction against his nominees? When Ben Bernanke’s reappointment was jeopardized, the president fully engaged the fight. Obama worked the phones himself to help Senate leadership line up 60 cloture votes. But what about the additional 300 critical federal executive, regulatory and judicial positions that remain empty?
At his question session during the Senate Democrat retreat, Obama was adamant that if “government is going to work for the American people,” Republican confirmation obstruction “has to end.”
Senate Majority Leader Harry Reid recently detailed national security dangers resulting from Republican obstruction of defense, intelligence and homeland security appointments. And, Sen. Tom Harkin is prioritizing labor-related confirmation fights. Of equal concern should be the growing number of Department of Justice vacancies, especially in those offices charged with establishing legal policy and vetting scores of other federal nominees, including judges.
Deputy Attorney General David Ogden’s resignation effective early this month leaves the Justice Department without a permanent number two executive official. And the three recently renominated Assistant A.G.s (Dawn Johnsen, Christopher Schroeder, and Mary Smith) will rejoin the long queue of other Obama nominees waiting for a Senate floor vote. It is past time for the Senate majority and the Administration to fight for Justice.
Soliciting Bipartisan Advice, Receiving Partisan Contempt
A year ago seemed like such a hopeful time. Barack Obama entered the White House sincerely wanting to end the partisan confirmation wars. Obama actively solicited bipartisan senatorial advice and, at first, received well-deserved praise for his genuinely diverse, exceptionally qualified, and experienced nominees.
But by late spring, “partisan payback” was revealed as the Senate minority’s watchword from January 20, 2009. As presidential poll numbers declined, Republican obstruction increased. Extreme slow walking was Senate summer sport and the abuse of individual Senate holds (mini-filibusters), the regular order of business.
In fall 2009, partisan procedural delay tactics had proven effective; hundreds of executive and regulatory vacancies still existed and Obama had benched only a dozen judges. On December 24, 2009, Republicans claimed yet another tactical victory by forcing several key nominees back to the White House.
Republican leaders refused to allow the traditional courtesy permitting pending nominations to carry over to the second Senate session. For the Obama nominees, whose lives were on hold for up to a year awaiting confirmation, it was an especially insulting lump of Republican coal in their stockings.
Among the rudely returned were three DOJ Assistant A.G. nominees (Dawn Johnsen for the Office of Legal Counsel, Christopher Schroeder for the Office of Legal Policy, and Mary Smith for the Tax Division). Also rejected was Craig Becker, Obama’s nominee to Chair the quorum-challenged National Labor Relations Board.
Commentators from the left and right prematurely blogged: “Senate Returns Nominees: White House Rolls Over.” Wrong!
Obama Fights Back but Sessions Targets Dawn Johnsen
First-year confirmation lessons may have been learned. President Obama stood by his women and men — at both Justice and the NLRB. The nominations were sent back to the Senate with White House expectations that the respective Senate committees (Judiciary and Labor) would quickly reapprove the renominations so they could proceed to a floor vote.
Obama’s bold act spurred Sen. Arlen Specter to finally commit to Dawn Johnsen for the OLC. Indiana Republican Richard Luger also reaffirmed his pledge to support the Indiana University law professor. For a few days it appeared Johnsen finally had the 60 cloture votes to unblock her year-old nomination. This whip count did not include Sen. Ben Nelson, the lone Democrat yet undecided on Johnsen.
But Obama’s assertive renomination resulted in Johnsen being targeted for more obstruction. Sen. Jeff Sessions, a ranking Judiciary Committee member, demanded a second round of hearings for Johnsen and other renominated DOJ officials. Republicans also invoked committee rules to game out an additional week’s delay. The three renominated DOJ officials join other nominees, including several judicial nominees, on the Thursday, February 4th agenda of the Judiciary Committee’s latest executive schedule.
Meanwhile, Scott Brown’s election confused the cloture whip count. Regardless of when Senator-elect Brown takes Ted Kennedy’s Senate seat, Johnsen and all re-nominated DOJ officials should be quickly reapproved by the Judiciary Committee. Also, Chair Patrick Leahy should take the nominations to the Senate floor as soon as possible.
The 60 votes needed for cloture can be found. On February 1, Sen. Tom Harkin mustered exactly the 60 votes needed for cloture when he broke the GOP filibuster of Obama’s nominee for Labor Department Solicitor.
As the Administration did for Bernanke, Barack Obama, Joe Biden, and the entire White House political operation must lobby for the 60 cloture votes for Justice and NLRB officials. Particular attention should be focused on Dawn Johnsen’s appointment.
Johnsen: A Superb OLC Fit
Democrats and Republicans know the importance of the Office of Legal Counsel to national justice and the rule of law (if only by the damage it inflicted during the Bush years).
The OLC is the in-house lawyer for the Attorney General and the Justice Department. When an official needs high-level constitutional advice, the OLC can be consulted. An OLC opinion carries great persuasive authority but it also effectively insulates federal officials relying on the advice, from liability. When government factions disagree, the OLC is an important arbiter.
Doug Kmiec, OLC head for Ronald Reagan and George H.W. Bush, describes the OLC as the Justice Department’s “conscience.” Kmiec, who endured harsh party and church criticism for his 2008 support of Barack Obama, is well aware of the cost of conscientious conviction. Prior to his appointment as Ambassador to Malta, Doug Kmiec joined other legal stars of both parties in praising Dawn Johnsen.
He judged Johnsen’s “spunk and independence of mind” as “just the right tonic for a once proud, but recently tarnished, office.” Kmiec referenced her constitutional scholarship and past public service: “[W]e would be hard-pressed to identify any other comparable appointee for a Justice post who would be as well suited.” (Authors’ note: Doug Kmiec was our Dean at Catholic University of America’s Columbus School of Law from 2001-2003.)
Most importantly, the OLC has a proud tradition of offering independent and tempered advice to the President and the White House. In Dawn Johnsen’s words, “saying no” to the president is “the OLC’s core job description.”
Walter Dellinger, former OLC head, worked with Johnsen and went on to serve as U.S. Solicitor General, heralds Johnsen’s “keen intellect and extraordinarily good judgment.” Dellinger, a reported Obama Supreme Court short- lister, recommends Johnsen because of her “deep dedication to the rule of law.”
By any measure, Johnsen is a superb choice for the job. She served in the OLC for five Clinton years; indeed, Johnsen was acting head of the OLC from 1997-1998. For over the past dozen years, she has been a leading scholar on Justice Department issues. Prof. Johnsen is certainly patient. She patiently waited a year for Senate confirmation for her to fulfill exactly the same role she did for over a year in the Clinton Justice Department.
Speaking Truth to Power, Too Often
Dawn Johnsen is a distinguished academic and advocate, championing privacy, reproductive choice, the rule of law, separation of powers, and DOJ integrity. So why have Republicans, like Sen. John Cornyn, blocked her appointment for over a year? Perhaps the scholar dared to speak truth to power once too often.
In her 2008, Slate commentary, Johnsen dissected the flawed reasoning of the infamous torture memos and other legal opinions written by then OLC attorney John Yoo. She dared connect the bloody dots from Yoo’s poison pen directly to George W. Bush’s oval office: “President Bush asked for this kind of distorted legal advice. Remember, from day one, the President sent his lawyers the express message that they were NOT to interpret the law impartially and straight up.”
Time to Get Serious
Sen. John Cornyn represents the obstructionist wing of the Republican Party well in defaming Johnsen (using perhaps unintentionally sexist language) by claiming she lacks the “requisite seriousness” for the OLC job. Truth be told, Cornyn’s real issue with Johnsen may be that the woman is just too serious a scholar and too smart a lawyer.
Were it not for his Senate power to individually block a nominee, it would be hard to take Cornyn’s criticism seriously. Consider his recent Senate campaign ad featuring “Big John, Big Bad John” sporting an oversized cowboy hat, riding on a too pretty horse. The reelection ad’s Zane Grey Theatre voice-over describes Senator “Big Johnnie” being thanked by a grateful populace for “doing the Lord’s work for Texas,” in an undisclosed location: “For that place out yonder needs more men like you, Who shoot straight, And talk straight, And enjoy a good brew. ”
Perhaps most threatening to the junior senator from Texas, Johnsen has been too consistent in her principles. If Senate memory serves, it was long-time “up-or-down confirmation vote” advocate John Cornyn who stated: “What the American people want and expect is that we…will not degenerate into partisan finger-pointing or name-calling, nor obstruction.” Sen. Cornyn also complained in a 2005 letter to the New York Times: “Senate practice and even the Constitution contemplate deference to the president and a presumption in favor of confirmation.”
Are there at least two or three Republican senators who will join Democrats in a series of confirmation cloture votes for Justice’s sake? Are none in the minority embarrassed by the blatant GOP hypocrisy in blocking Obama nominations, when such procedural tactics were so uniformly (even elegantly) criticized by the Republicans during the George W. Bush years?
Dawn Johnsen’s appointment is a litmus test for the Senate confirmation process and for the recharged Obama political operation. If she does not receive a full Senate vote, Democrats must implement the Constitutional Option to return to the Framer’s design of a simple majority confirmation vote.
And, independently, as I’ve argued before for presidents of both parties, President Obama should fully utilize the alternative recess appointment process to fully staff our national government. If Obama finds the will, Clause 3 of Article II, Section 2 will provide the constitutional way. All recess commissions signed over the President’s Day Senate break would last until “the End of their next Session” — late 2011.
One appointment way or the other, the government must be fully staffed.
Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law; Nicola Sanchez is an attorney with the U.S. Nuclear Regulatory Commission. The views expressed are the authors’ alone and do not reflect those of CUA, the NRC or the federal government.
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Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) on Wednesday urged the Senate to confirm several nominees approved by his committee, including five Justice Department officials and two prospective U.S. Attorneys.
The nominees are:
- Dawn Johnsen, who was approved by his committee on March 19, for head of the Office of Legal Counsel.
- Mary L. Smith, who was reported out of the committee June 11, for head of the Tax Division.
- Christopher Schroeder, who was reported by the Judiciary panel July 28, for head of the Office of Legal Policy.
- Susan B. Carbon, who was reported out of committee Dec. 3, for head of the Violence Against Women Office.
- John Laub, who was reported out of committee Dec. 3, for head of the National Institute of Justice.
- Sanford Coats, who was reported out of committee Dec. 3, for U.S. Attorney for the Western District of Oklahoma.
- Mary Elizabeth Phillips, who was reported out of committee Dec. 3, for U.S. Attorney for the Western District of Missouri.
In a press release, Leahy said, “This year we have witnessed unprecedented delays in the consideration of qualified and noncontroversial nominations,” adding, “We have had to waste weeks seeking time agreements in order to consider nominations that were then confirmed unanimously. I hope that instead of withholding consent and threatening filibusters of President Obama’s judicial nominees, Senate Republicans will treat the nominees of President Obama fairly.”
He continued, “During President Bush’s last year in office, we reduced judicial vacancies to as low as 34, even though it was a presidential election year. Judicial vacancies have now spiked. There are currently 97 vacancies on our federal circuit and district courts, and 23 more have already been announced. This is approaching record levels. I know we can do better. Justice should not be delayed or denied to any American because of overburdened courts and the lack of federal judges.”
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Sen. Richard Durbin (D-Ill.) last week reiterated his support for the stalled nomination of Mary L. Smith as the head of the Justice Department’s Tax Division, saying that she was fully qualified for the post. Durbin on Wednesday gave a floor speech about the delay, caused by a “hold” on Senate floor action by anonymous Republicans.
Smith, a member of the Cherokee Nation, was approved by the Senate Judiciary Committee June 11 without the support of the panel’s Republican members. The Republicans complained that Smith, a partner at the Schoeman, Updike & Kaufman law firm in Chicago, had virtually no tax experience.
The senior senator from Smith’s home state described her as “a highly qualified nominee,” even though she “is not a traditional tax lawyer.” Durbin touted her experience working on tax law and tax policy issues, adding that “Judiciary Republicans are grasping at straws with [the] allegation” that she is unqualified to head the Tax Division.
Durbin’s speech on Smith came Nov. 18 during Senate floor debate on the nomination of Judge David Hamilton to the Seventh Circuit Court.
The full text of Durbin’s statement is below:
Madam President, I would also like to discuss another nominee whom the Republicans have been stalling: Mary L. Smith. She is President Obama’s nominee to be the Assistant Attorney General for the Tax Division at the Justice Department. Mary is from my home State of Illinois, and Senate Republicans have been holding up her nomination for over 5 months.
Mary Smith is a highly qualified nominee who has had a distinguished 18-year legal career. After graduating from the University of Chicago law school, she clerked for a prestigious Federal judge and then litigated at a large Chicago law firm. She then worked as a trial attorney in the Justice Department’s Civil Division and as a lawyer in the Clinton White House.
Mary returned to private practice and joined the international law firm of Skadden, Arps, Slate, Meagher & Flom, where she focused on business litigation. After 4 years at Skadden, she went to work at Tyco International, where she managed what has been called the most complex securities class action litigation in history.
Mary has also been deeply devoted to pro bono work and public service, which really tells the story of a lawyer’s dedication to the profession. She serves on many bar association boards including the Chicago Bar Foundation, which helps provide free legal services to low-income and disadvantaged individuals.
Mary Smith is not only a highly qualified nominee, she is a historic nominee. Mary is a member of the Cherokee Nation and, if confirmed, she would be the first Native American to hold the rank of Assistant Attorney General in the 140-year history of the Justice Department. She would be the highest ranking Native American in DOJ history.
I was sorry to see that when we took up Mary Smith’s nomination in the Senate Judiciary Committee, the Republican members voted against her. They alleged she was unqualified for the job because she doesn’t have as much tax law experience as other recent Tax Division nominees.
The Judiciary Republicans are grasping at straws with this allegation. First of all, it is an inherently subjective determination. There is no record of how much time Mary Smith has spent working on tax issues compared with previous nominees.
It is true Mary is not a traditional tax lawyer, but she has worked on tax law and tax policy issues throughout her career. During the years she worked at Tyco International, she worked closely with that company’s tax department on responding to IRS subpoenas and assessing the complex tax implications of the $3 billion settlement of the Tyco securities litigation.
When she served in the Clinton White House she worked with congressional offices, the Treasury Department, and the National Economic Council to address tax disparities between Indian tribes and State governments.
And more recently, she served on President Obama’s Justice Department transition team, and she helped review and analyze the Tax Division, the very office she has been nominated to lead.
The second reason the Republican allegation about Mary Smith’s qualifications is off base is because Mary has more litigation, management, and Justice Department experience than previous Tax Division nominees. Those are critical qualifications to lead the Tax Division. In this respect, Mary Smith is more qualified than her predecessors.
Mary is a seasoned litigator who has had multiple trials and courtroom experience. The head of the Tax Division needs first and foremost to be a person with litigation experience, and Mary Smith fits the bill. She has been a litigator in the Justice Department, in two large law firms, and in one of the largest corporations in the country. Two of the recent Tax Division leaders-whom the Judiciary Republicans hold up as models of what it takes to lead that office-had no litigation experience and never had a single trial.
Mary is also more qualified than some of her predecessors when it comes to management experience. The Tax Division is an office with over 350 attorneys. When she worked on the Tyco litigation, Mary managed over 100 lawyers and a $50 million budget. She managed large litigation teams while working at the Skadden Arps law firm. And during her service in the White House, she helped manage and coordinate the work of multiple Federal agencies. None of the other recent Tax Division nominees had as much management experience as Mary Smith, a fact that has little value to the Judiciary Republicans who voted against her.
Mary also has more Justice Department experience than her recent predecessors. She worked in the DOJ Civil Division as a trial attorney, and she was a key member of President Obama’s DOJ review team last winter. She understands the Justice Department as an institution, and the perspective of the DOJ career staff.
In short, Mary has an excellent background to lead the Tax Division. She has litigation experience, management experience, DOJ experience, and tax experience. None of the previous heads of that office had all of these qualifications combined.
One of those prior Tax Division leaders, Nathan Hochman, has come forward in support of Mary Smith’s nomination. Mr. Hochman was the head of the Tax Division under President George W. Bush, so he’s not exactly a partisan Democrat. Mr. Hochman wrote a letter to the Senate and said the following:
I am confident Mary will provide strong leadership for the [Tax] Division and is a good choice. ….. Mary’s private practice experience in complex financial litigation gives her a working background for the type of cases litigated by the [Tax] Division.
I would suggest that President Bush’s Tax Division leader has a better understanding of what it takes to lead the Tax Division than a handful of Senators.
Ted Olson is another prominent Republican who supports Mary Smith for this position. Mr. Olson is one of the most respected lawyers in America and he served as the Solicitor General at the Justice Department under President George W. Bush. He worked closely with the Tax Division and represented that office in cases before the Supreme Court.
Ted Olson wrote a letter to the Senate and called Mary Smith “a first-rate litigator” and “a fine choice to be this nation’s Assistant Attorney General for the Tax Division.”
The Senate has received dozens of other letters of support for Mary Smith, including many from our Nation’s leading Native American leaders. They are eager for the Senate to confirm Mary so she can become the highest ranking Native American in the history of the Justice Department.
The month of November is National American Indian and Alaska Native Heritage Month. We would honor our Native American community by confirming Mary Smith this month.
I urge my Republican colleagues to stop blocking this important nomination and agree to a vote on my Illinois constituent, Mary Smith.
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Republican Sens. Sam Brownback and Pat Roberts said today they are blocking ”key” nominees to the Justice and Defense departments, in light of press reports that the Obama administration is mulling a plan to house and try Guantanamo Bay detainees at the military penitentiary at Fort Leavenworth, Kan.
The senators did not specify which nominations they placed legislative holds on, and their offices did not immediately respond to requests for comment. A spokeswoman for Roberts told CQ the list does not include U.S. attorney nominations or military promotions.
The administration is said to be considering a court-room-within-a-prison complex. The plans would combine civilian and military detention facilities under one roof. The operation would be jointly run by the departments of the Defense, Homeland Security and Justice. Another possible site is the soon-to-be-shuttered state maximum security prison in Michigan.
Brownback, Roberts, and a raft of Republicans and Democrats have balked at the idea of transferring detainees to U.S. soil. Congress has vowed to withhold funding for the closure of Guantanamo Bay until the Obama administration provides more details of the undertaking.
Brownback and Roberts said they would hold up the nominees until the White House complied with a list of 11 requests, including a briefing by Defense Secretary Robert Gates, Attorney General Eric Holder, or other senior officials studying the detention issue. They also demanded analyses of the costs and economic impact of implementing the plan, a ”classified list and background” of every detainee considered for transfer to Fort Leavenworth, and a detailed explanation of where the administration would move the 430 military prisoners currently held at the penitentiary.
A Senate leadership aide told Main Justice yesterday that Senate leaders are still trying to reach a deal that would bring DOJ nominees up for votes before the recess. There are four nominees to key Justice Department posts awaiting a vote:
- Dawn Johnsen, Office of Legal Counsel (Reported out of committee: March 19)
- Thomas Perez, Civil Rights Division (Reported out of committee: June 4)
- Mary Smith, Tax Division (Reported out of committee: June 11)
- Christopher Schroeder, Office of Legal Policy (Reported out of committee: July 28)
Apparently, they’ll be waiting a bit longer.
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Last week, we reported that the DOJ issued a defense of President Obama’s nominee to head the the Department’s Tax Division, Mary L. Smith. But tax bloggers were not satisfied. ”The Tax Lawyers Blog,” run by tax attorney Peter Pappas, responded with a post titled: “White House Says DOJ Tax Division Nominee is Qualified, I say Bologna,” while “Taxgirl,”run by Kelly Phillips Erb, went with “Justice Tax Division Nominee Has No Tax Experience.”
Pappas took particular issue with the DOJ’s claim that “The Tax Division is not a policymaking entity.” He noted that the last two Tax Division chiefs, Eileen O’Connor and Nathan Hochman, had extensive experience in tax law. O’Connor, for example, was a corporate tax law specialist at the IRS. “And how is it that an essential qualification of the job is not a thorough grounding in substantive tax law?” Pappas wrote. And it seems that Taxgirl is just shocked that so many people wrote recommendation letters for Smith, including Hochman. You can read Hochman’s letter here.
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In Mary L. Smith’s otherwise uneventful Senate Judiciary Committee confirmation hearing this afternoon, Sen. Jeff Sessions (R-Ala.) sharply questioned the Chicago-based lawyer’s qualifications to head the Tax Division.
“You have virtually no experience in tax work, it seems to me,” Sessions said. “First, would you tell us what tax experience you have?”
Smith mentioned her pasts work as in-house counsel at Tyco, where she managed complex financial litigation stemming from the 2005 convictions of Tyco executives Dennis Kozlowski and Mark Schwatz for stealing $134 million from the company.
“That case involved many different allegations of security fraud, there were many complex accounting issues,” Smith said. “I have to say senator that I delved in deeply to that and often times knew the facts of the accounting issues better than most of the people involved in the case.”
Sessions, the new ranking member of the panel, wasn’t convinced. “That’s just not much,” the Alabama Republican said. “That’s troubling to me. I don’t know why it would be necessary to choose someone who doesn’t have a lot of experience in the area.”
Smith was a trial attorney in the Civil Division’s commercial litigation branch from 1994 to 1996. She is currently a partner at Schoeman, Updike, Kaufman and Scharf, a women-owned law firm in Chicago.
Sessions also asked Smith if she is familiar with Tax Division standards on illegal tax shelters — a big area of litigation right now, with the U.S. pressing Swiss bank UBS to reveal the names of Americans who avoided income taxes with overseas accounts.
“Senator, I have read some things, but I am not in the department yet,” Smith said. She said she expected to get up to speed quickly if confirmed.
“I’m just a bit uneasy to me to have someone with so little experience in this,” Sessions repeated. But he added: “I don’t have any information that you lack integrity or a good work ethic.” The senator said he may submit a few written questions for the record. And then the hearing - which also included questions for Gerard Lynch, nominated to the U.S. Court of Appeals for the Second Circuit — was adjourned.